Legally Speaking

January 1, 2005

Complication during D&C results in hysterectomy A 25-year-old woman underwent an elective abortion at a Florida clinic. An ultrasound performed 5 weeks later showed that she was still pregnant. When a second procedure was performed a few days later, the woman's uterus was perforated. She remained in the clinic's recovery room for 3 hours with excessive bleeding before being transferred to a hospital, where an emergency hysterectomy was performed.

Complication during D&C results in hysterectomy A 25-year-old woman underwent an elective abortion at a Florida clinic. An ultrasound performed 5 weeks later showed that she was still pregnant. When a second procedure was performed a few days later, the woman's uterus was perforated. She remained in the clinic's recovery room for 3 hours with excessive bleeding before being transferred to a hospital, where an emergency hysterectomy was performed.

The woman sued the physician and clinic, claiming failure to diagnose and treat the perforation in a timely fashion. She claimed that both procedures were negligently performed and that the physician failed to obtain informed consent before the second procedure.

The physician denied any negligence and argued that perforation is a risk of the procedure. The jury found in favor of the defense.

The woman sued the physicians involved in the hysterectomy operation, alleging negligence in the failure to diagnose and repair the fistula.

The physicians contended that the occurrence of a fistula is a known risk of the procedure and argued that proper and timely referral to a urologist was made. A defense verdict was returned.

Bladder perforation during laparoscopy During diagnostic laparoscopy in 1999, a 20-year-old Illinois woman's bladder was perforated. The problem was identified and repaired the same day. The patient subsequently sued her gynecologist, alleging that she continued to have urinary frequency, urgency, and urge incontinence.

The physician maintained that bladder perforation is a recognized risk of laparoscopy and that repair was done the same day. A defense verdict was returned.

Uterus and bowel perforation during procedure An Arizona woman was 38 when she went to her gynecologist for dilation and curettage. She later sued the physician, claiming that her uterus and small bowel were perforated during the procedure. She developed peritonitis and required hospitalization for several months, and underwent multiple operations, including an ileostomy and reversal.

The physician denied any negligence and a defense verdict was returned.

Legal perspectiveIn the preceding four cases, the physicians were sued because the patients suffered known complications during the procedures performed. The issues that usually come up in this type of malpractice case are the time it took for recognition of the complication and whether it was managed appropriately. Typically the patient will also allege a lack of informed consent for the procedure. Informed consent is given when the patient is informed of the known significant complications that a reasonable person would need to know to make a reasonable decision to have the procedure. Documentation of that discussion should be enough to overcome a charge of lack of informed consent. The key to defending management of the complication is documenting that the complication was recognized in a timely manner and that the appropriate treatment was provided to correct the complication and minimize any long-term effects.

Failure to place cerclage A Massachusetts woman had a history of diethylstilbestrol exposure, laser conization of the cervix to treat noninvasive cancer, and the need for cerclage during her first pregnancy. Her second pregnancy occurred after treatment for infertility. At the time of that pregnancy, the obstetrician who originally diagnosed her incompetent cervix and anticipated using a cerclage in any future gestation retired. The woman went to a new doctor, who was informed by the infertility specialist of her history and saw her at 10 weeks' gestation. That obstetrician did not feel a cerclage was needed and elected to follow the patient with serial ultrasounds.

At 14 and 18 weeks, the cervix was determined to be normal, and at 19 to 20 weeks it was closed but was 50% effaced. An ultrasound the next day revealed a 1-cm dilated cervix with membranes bulging through it. The woman was admitted to the hospital for emergency cerclage and then sent home on bed rest. At 25 weeks' gestation, her membranes ruptured and she was readmitted for bed rest and monitoring for infection and fetal lung maturation. At 26 weeks and 3 days, uterine contractions began and she underwent a cesarean section.

The infant required hospitalization for several weeks and had respiratory distress syndrome, chronic lung disease, retinopathy of prematurity, and other complications of prematurity.